TaxTMI 
TaxTMI 
2008 (1) TMI 411
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....ich contained two columns, namely, 13(A) and 14, which read as follows :- 13(A) : Have you ever been arrested? 14 : Have you ever been convicted by the Court of any offence? 4. As far as the respondent in SLP(C) No. 1840 of 2007, Dinesh Kumar, is concerned, he answered the said two queries in the negative. Subsequently, during verification of the character and antecedents of the said respondent, it was reported that he had been arrested in connection with a case arising out of FIR No. 168 of 13th October, 1994 registered at Kalanaur Police Station under Sections 323/324/34 Indian Penal Code. He and his family members were ultimately acquitted of the charges framed against them on 6th January, 1998, by the Judicial Magistrate, 1st Class, Rohtak. The appellant, however, alleged that the respondent had concealed these facts from the Selection Committee and had not correctly furnished the information in columns 13(A) and 14 of the application form submitted by him for recruitment to the post in question. 5. Since, according to the appellants, the respondent had failed to disclose the aforesaid criminal case, which had been registered against all his family members, he was n....
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....s while filling column 14 of the application form. The High Court was of the view that since the writ petitioners had withheld important information it clearly disentitled them to appointment, as it revealed that they could not be trusted to perform their duties honestly. The High Court, accordingly, dismissed the writ petitions as being without merit. 10. In the first of the two appeals, the respondent had not surrendered to the police but had appeared before the Magistrate with his lawyer of his own volition and was immediately granted bail. Admittedly, therefore, the respondent had not surrendered to the police but had voluntarily appeared before the Magistrate and had prayed for bail and was released on bail, so that as per the respondent's understanding at no point of time was he taken into custody or arrested. 11. As to the second of the two appeals, the appellants in response to the query in column 14, had quite truthfully answered that they had not been convicted by any Court of any offence, since they had been acquitted of the charges brought against them. With regard to column 13(A), the appellants who had been implicated in FIR 108 dated 26th May, 2002 under Sectio....
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.... use all means necessary to effect the arrest. (3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. ["(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.]" 14. We are concerned with sub-sections (1) and (2) of Section 46 of the Code from which this much is clear that in order to make an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be submission to the custody by word or action. 15. Similarly, the expression "custody" has also not been defined in the Code. 16. The question as to what would constitute "arrest" and "custody" has been the subject matter of decisions of different High Courts, which have been referred to and relied upon by Mr. Patwalia appearing fo....
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....l offence. 20. Mr. Patwalia referred to certain decisions of the Allahabad High Court, the Punjab High Court and the Madras High Court which apparently supports his submissions. Of the said decisions, the one in which the meaning of the two expressions "arrest" and "custody" have been considered in detail is that of the Full Bench of the Madras High Court in Roshan Beevi's case (supra). The said decision was, however, rendered in the context of Sections 107 and 108 of the Customs Act, 1962. Sections 107 and 108 of the Customs Act authorises a Customs Officer empowered in that behalf to require a person to attend before him and produce or deliver documents relevant to the enquiry or to summon such person whose attendance is considered necessary for giving evidence or production of a document in connection with any enquiry being undertaken by such officer under the Act. In such context the full Bench of the Madras High Court returned a finding that "custody" and "arrest" are not synonymous terms and observed that it is true that in every arrest there is a custody but not vice-versa. A custody may amount to "arrest" in certain cases, but not in all cases. It is in the aforesaid cir....
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....ssity of dilating on the shady facet as the Court was satisfied that the accused had physically submitted before the Sessions Judge giving rise to the jurisdiction to grant bail. Taking refuge in the said observation, the Full Bench observed that the decision rendered by this Court could not be availed of by the learned counsel in support of his contentions that the mere taking of a person into custody would amount to arrest. The Full Bench observed that mere summoning of a person during an enquiry under the Customs Act did not amount to arrest so as to attract the provisions of Article 22(2) of the Constitution of India and the stand taken that the persons arrested under the Customs Act should be produced before a Magistrate without unnecessary delay from the moment the arrest is effected, had to fail. 23. We are unable to appreciate the views of the Full Bench of the Madras High Court and reiterate the decision of this Court in Niranjan Singh's case (supra). In our view, the law relating to the concept of "arrest" or "custody" has been correctly stated in Niranjan Singh's case (supra). Paragraphs 7, 8 and the relevant portion of paragraph 9 of the decision in the said case sta....
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.... Code is that a person who is an accused must be in custody and his movements must have been restricted before he can move for bail. This aspect of the matter was considered in Niranjan Singh's case where it was held that a person can be stated to be in judicial custody when he surrenders before the Court and submits to its directions. 25. It is no doubt true that in the instant case the accused persons had appeared before the concerned Magistrates with their learned advocates and on applying for bail were granted bail without being taken into formal custody, which appears to have swayed one of the benches of the Punjab and Haryana High Court to take a liberal view and to hold that no arrest had actually been effected. The said view, in our opinion, is incorrect as it goes against the very grain of Sections 46 and 439 of the Code. The interpretation of "arrest" and "custody" rendered by the Full Bench in Roshan Beevi's case (supra) may be relevant in the context of Sections 107 and 108 of the Customs Act where summons in respect of an enquiry may amount to "custody" but not to "arrest", but such custody could subsequently materialize into arrest. The position is different as far....